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Caste And Privacy - A Note On Madras High Court Judgement

Prof M Sridhar Acharyulu
16 Sep 2020 12:42 PM GMT
Caste And Privacy - A Note On Madras High Court Judgement
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The rejection of information about persons selected as per their caste of backward class is invalid when quotas are based on a caste, which was accepted as a social group in identifying backwardness. The Public Information Officers (PIOs) are consistently rejecting the requests wherever 'caste' is referred as 'private' information. This case is a classic example.

Muthian asked for the following information:

a) Total number of vacancies called for the years 2006, 2007 and 2008;

b) Number of seats allocated to the Backward Community out of the total number of vacancies called for the years 2006, 2007 and 2008;

c) Number of seats allocated to the Most Backward Community out of the total number of vacancies called for the years 2006, 2007 and 2008;

d) Out of seats allocated to the Backward Community, the list of the selected candidates from the sub-castes of Muthuraja and Muthriyar;

e) Out of seats allocated to the Most Backward Community, the list of selected candidates from the sub-castes Ambalakarar;

f) Out of seats allocated to the Most Backward Community, the list of selected candidates from Vanniya Kula Shatriar sub-castes (Vanniyar, Vanniya, Vanniya Gounder, Kandar, Padayachi Palli and Agni Kular Shathriar)."

Tragedy is that it took 12 years to get an order of disclosure. If the Tamil Nadu Public Service Commission chooses to take this issue to Supreme Court, then Muthian may not get the information. The public authorities and their indifferent PIOs are frustrating the aims and objects of the transparency legislation.

Caste and privacy

The Public Information Officer of the Tamil Nadu Public Service Commission (TNPSC) gave the detailed information sought for in respect of (a) to (c) but denied the information for the other queries claiming exemption under Section 8 (1) (d) of Right To Information Act, which pertains to commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party. They did not apply their mind and have not attempted to give any justification to state which kind of confidence was going to be violated by disclosing this information. However, on appeal, the second appellate authority, i.e. the Tamil Nadu State Information Commission (TNSIC) ordered that the information sought be provided free of cost.

The TNPSC claimed before the Madras High Court that it, being a Constitutional Functionary, has moral obligation to maintain confidentiality and in the event of furnishing of the details to the respondent, it would harm the interest of third parties. It also stated that the details regarding caste-wise breakup of the selected candidates has got nothing to do with public activity and such disclosure would amount to invasion of the privacy of individuals, apart from creating communal discontent and strife. It was stated that the State has stopped the sporting of the caste behind the names of persons and at the time of publication of result, TNPSC indicates only the Class of candidates and not otherwise. Therefore, the direction to furnish such details, issued by TNSIC is highly unsustainable and untenable.

Disagreeing with this view, the High Court opined that the disclosure of the caste-wise breakup would benefit the candidates as it would help them ascertain whether they actually fall under the reservation quota or not. In any case, it was pointed out

"When the general list itself has already been published for public view, as stated in the petition, there is nothing wrong in disclosing the details to the respondent."

The Court added that the TNPSC's apprehension that an in-depth description of castes would create communal unrest is only an illusion. Justice Vaidyanathan further remarked

"... if it is the real concern of TNPSC and the Government, they should think of abolishing the quota system as well as removal of column regarding caste particulars in the school certificate itself, so that the people of Tamil Nadu could stand united under one roof irrespective of caste, creed, religion, etc. at least in the year 2050 and our State will be a model State for the whole of the country."

Satire on Information Commissions

In its landmark judgment on 7th September, Madras High Court hurled a serious satire against the functioning of Information Commissions in our country. In a writ petition filed by the Tamil Nadu Public Service Commission against Tamil Nadu State Information Commission & A. Muthian, the Court while up-holding TNSIC's order of disclosing the information sought, commented

"This may be one of the rarest of rare cases where the Second Appellate Authority has boldly taken a decision, which does not warrant any interference by this Court, as there is no error apparent on the face of record."

Under the Right to Information Act, 2005, Second Appellate Authority means the Information Commissions in States and Central Information Commission at Centre. The High Court by using expression "… the rarest cases where…has boldly taken a decision" has criticised the functioning of all Information Commissions and lamented that they are not frequently taking bold decisions. It's a slap on absence of boldness and independence in giving orders in second appeals. The Act provided for second appeal from the failure of securing information from First Appellate Authority, who is an internal officer senior to the PIO (Public Information Officer). While the First Appellate Authority is not an independent authority, the RTI Act envisaged the Central Information Commission and State Information Commissions to be independent and to give bold orders directing disclosure of information if the requested information is not exempted under Section 8 or 9 of Act.

Reduced authority of Information Commissioners (IC)

In the year 2019, the Centre diluted the office of the IC by reducing its authority, term and salary from originally prescribed status and made it just a body to which the Centre would appoint any person according to rules prescribed by Centre from time to time. Practically it means that whenever Centre wants it can change the term, status, and salary of the ICs, not only at Centre but also at the level of States. Unfortunately, no State resisted this amendment, even though it takes away the powers of State Governments and centralises the power in the Centre, which is against the federal principles of the Constitution of India.

Earlier, the Central Information Commissioner was equal to Election Commissioner who is at par with Judge of Supreme Court, with an unimpeachable term of 5 years, which can be removed only on proof of misconduct. Now the Commissioner will have three years of term and status of a Joint Secretary. The NGOs and RTI activists have opposed the selection of former bureaucrats to 90 per cent of these positions and have been demanding selection of eminent persons from different walks of life as prescribed under Section 12(5) and 15(5) which states that ICs "shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance".

But the Governments, for the posts of Chief Information Commission at Centre and in most of the States, are invariably picking up former bureaucrats and in order to keep important portfolios like Prime Minister Office and Chief Minister Office(s) only with them. This practice reduces the possibility of a Central Information Commissioner or State Information Commissioner giving 'bold' decisions ordering disclosure to PMO and CMOs.

High Court's admonition of Public Information Officers

The Madras High Court has captured all the plight of Information Commissions and the lack of boldness in majority of their orders in the above paragraph. The High Court was also very strong in criticising the way the TNPSC refused to give information by raising false apprehensions and found fault with the PIOs for their irresponsible and mechanical rejections of the information requests.

The Court suggested that Public Information Officers who resort to doing so "must be shown the door" for failing to act in terms of the RTI Act's mandate, and further commented

"... in my view, they are unfit to hold the post of Public Information Officer or any post in connection with the discharge of duties under RTI Act and they should be shown the doors".

Justice S Vaidyanathan remarked

"Now-a-days, the Officials are used to adopt a tactic answer in mechanical manner that the information sought for is exempted in the light of Section 8(1)(d) of the Act, without actually ascertaining as to whether the information sought falls within the ambit of the said provision. Such Officers must be taught a lesson and in my view, they are unfit to hold the post of Public Information Officer or any other post in connection with the discharge of duties under RTI Act and they should be shown the doors, so that it will be a lesson for other Officers to act in accordance with the terms of the Act, failing which they may also face the similar or more consequences."

There are two kinds of PIOs in public authorities of Centre and States. The first kind have a closed mindset and invariably invoke Section 8 quoting some clause without substantiating or justifying their denial. The second kind are the Chief PIOs or PIOs or Assistant PIOs who are under constant pressure from top officials in public authorities which is why it is difficult for them to disclose information which could embarrass their bosses.

Transparency does not undermine judicial freedom

Emphasising the significance of the Right to Information (RTI) Act, 2005, the court said

"...the provision of Section 6 confers right to information to any person for the obvious reason that right to information flows from the right to expression... Even the Supreme Court clearly held that the office of Chief Justice will come under the purview of Right to Information (RTI), by observing that transparency does not undermine judicial freedom. "

The High Court also referred the following classic statement of the Supreme Court in the case of State of Uttar Pradesh v. Raj Narain and Others

"...people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its hearing."

Harsh consequences for RTI rejections

It is highly pertinent to note that the Court has directed the Tamil Nadu Government to issue a circular to its Departments warning of the legal consequences that would follow if information is not divulged in line with the RTI Act. It stated

"The Government is directed to circular this order to all its Departments, Public Sector Undertakings, Corporation, etc., so that the Authorities, more particularly under RTI Act, will come to know of the legal consequences of non-furnishing of the details, which the affected parties / General Public seek for."

The TNSIC has rightly directed the disclosure of the information sought for within a month's time. The Commission and High Court have found that first authority had erroneously relied on Section 8(1)(d) of the RTI act to reject the RTI request. The Court observed

"...the purpose of enactment of RTI Act itself is to ensure transparency in all respects. Moreover, a reading of the said section shows that it relates to commercial confidence, trade secretes, etc., and it does not strictly prohibit the authority concerned from providing such details, as divulging of caste details will surely be beneficial to candidates to doubly ascertain either about their induction or rejection and as such."

Give the names of erring officials

In yet another significant direction, the High Court Bench wanted TNPSC to appraise the Court of the names and position of the officials who had rejected the RTI request and who had, thereby "failed to discharge their official duties as adumbrated under the RTI Act, 2005."

It is a rarest of the rare order of any constitutional court in recent times which rightly understood the objective of transparency law and strongly demanded accountability of Public Information Officers, besides indirectly suggesting the information commissions to act boldly.

Views are personal only.

(Author is a Former Central Information Commissioner and Dean, School of Law, Bennett University)

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